91 
1 



LIBRARY OF CONGRESS 



029 779 804 2 







A SUGGESTION AS TO 
CAUSATION. 



FRANCIS WHARTON. 



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1874. 






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PREFACE. 



The following pages, which are the Appendix to a Treatise on 
Negligence which I am about to publish, have been bound in this 
detached shape, as a contribution to the controversy on Causation, 
which has been revived by Mr. Mill's Autobiography, and by Mr. 
Tyndall's Belfast Address. I have not undertaken, as will be 
seen, to do more than suggest one or two points bearing on the 
philosophical vindication of the view of causation held alike by 
theology and jurisprudence. My object is chiefly to show that 
the same objections which apply to theology in this respect 
apply to jurisprudence ; and if religion, because it holds to moral 
causation, is to be banished, as Mr. Tyndall announces, to the 
region of the " emotions," jurisprudence must share the same 
fate. Whether this fate is one of servitude or of supremacy 
will be presently seen. 

One other analogy I may be permitted to notice. It is said 
by the materialistic philosophers that even if there -be a God, the 
sequences of Nature are so fixed that He cannot intervene to grant 
prayer. Yet this objection to God's answering prayer applies 
with even greater force to a human government answering peti- 
tions to change the same sequences of Nature. "Look at this 
patch of soil," says the materialist ; " to produce verdure here, 
even as much as would arise from the diversion of a single drop 
of water, involves upsetting the equilibrium of the universe." 
But a* child does not disturb the equilibrium of the universe 
by bringing a cup of water from a hydrant to moisten this dry 
spot ; nor does a municipal government disturb this equilibrium 
by turning a river from its course and bringing it in pipes to the 
consumers' door. One of the commonest offices of Roman juris- 
prudence was the beneficent moulding of this power of bringing 
water in aqueducts from river to city ; one of the most important 
departments of our own jurisprudence is the supervision of our 

3 



PREFACE. 

municipal corporations when engaged in this work. Let us con- 
ceive that on a petition being presented to a court to compel a 
municipal corporation rightfully to execute a trust of this kind, 
an expert called by the defendant should content himself with 
testifying " that Nature produces all things spontaneously," and 
that Nature cannot be disturbed. Now such an expert, if per- 
sisting in such an answer, and declining to testify further, would 
be committed for contempt ; and the corporation, if it had no 
better defence, would be compelled by attachment to discharge its 
duty of supplying the water. The physicist might say that this 
is physical force compelling physical action ; and that this proves 
his theme. But if we inquire what it is that puts this physical 
force in motion, we find that it is the moral sense of the court ; 
and that of this moral sense one of the conditions is a recognition 
of the petitioners' claims, as thus solemnly presented, connected 
with the circumstance that the presentation of such a petition is 
a pledge of loyalty and of obedience, making a petition one of the 
proper preliminaries of the decree. If, however, the sponta- 
neousness of Nature, and the fixed physical laws which control 
matter, can be beneficently interrupted by the moral force of 
an earthly court, in response to a petition, a fortiori is such the 
case with the moral force exercised by a divine court which has 
unlimited power of compensating the disturbances caused by 
such interruption. And if an earthly court, in answer to a peti- 
tion, can compel water to flow through a city without disarrang- 
ing the universe, God, in answer to prayer, can send rain, 

Cambkidge, October, 1874. 

4 



APPENDIX, 



CAUSATION VIEWED JURIDICALLY. 

The doctrine advocated by Mr. J. S. Mill, that the cause of an event 
is the sum of all its antecedents, has been already summarily re- 
jected as irreconcilable with the principles both of Roman and of 
Anglo-American law. As the question, however, is one of first import- 
ance, I have thought it best to give to it, at this place, a more detailed 
examination. 

At the outset it may be observed that the classical Roman jurists, to 
whom I first appeal, form a line of authorities who cannot be lightly 
dismissed. They, at least, are not open to the charge of being either 
recluses, weaving, in their studies, schemes which cannot bear the strain 
of practical life, or enthusiastic devotees, dealing only with the spiritual 
relations of man to God, and not with those of man to man. The jur- 
ists whose opinions are collected in the Justinian Digest were eminently 
men of business, and the ethical as well as the juridical duties of the 
Roman Empire were moulded by them for the purposes of practical life. 
The result of their labor is a system of jurisprudence which, from the 
purity of the principles on which it rests and from its adaptation to the 
common needs of civilized society, is so admirable, so exact, so homely, 
and so philosophical, that it is in its leading features as applicable to 
the civilization of our own day, as it was to the civilization of Rome at 
her prime. " The Justinian Digest," so Gibbon substantially tells us, "is 
the most splendid monument of juridical genius that literature retains." 
" The Code of Justinian," so speaks Hallam, " will form the basis of all 
other systems, and mingling, as we may hope, with the new institutions 
of philosophic legislators, continue to influence the social relations of 
mankind long after its direct authority shall be abrogated. The ruins of 
ancient Rome supplied the materials of a new city, and the fragments 
of her law, which have been already wrought into the recent Codes of 
France and Prussia, will probably, under other names, guide far distant 
generations by the sagacity of Modestinus and Ulpian." " We look to 
the Roman jurists," says Sir Henry Maine, 1 in a passage which I quote 
1 Middle Ages, vol. ii. ch. 9, pt. 2. 

5 



APPENDIX. 

from memory, " not only for what the law was, but for what it is to be." 
The opinion of these great, subtle, and at the same time eminently 
practical intellects, cannot be without weight on an issue on which the 
whole science of jurisprudence depends. 

Nor can it be said that these jurists spoke on this issue without being 
duly advised of its nature. The hypothesis of Mr. Mill, as Mr. Tyn- 
dall has lately reminded us, is as old as the first speculative philoso- 
phers. Cicero, who, though not himself claiming to be a jurist, dis- 
cusses, sometimes from a philosophical, sometimes from a rhetorical 
stand-point, the questions the jurists were called upon to decide, recurs 
not infrequently to the distinction between " causes " and " condi- 
tions " as fundamental to all sound jurisprudence. 1 A " condition " (or 
occasio), so he tells us, is a mechanical antecedent without causal power; 
a cause is the responsible voluntary agent changing the ordinary course 
of nature. 2 So, as Flavel reminds us, " critical and exact historians, as 
Polybius and Tacitus, distinguish betwixt the apxn and the atria, the 
beginning occasions, and the real causes of a war." 3 A distinction so 
universally recognized must have been familiar to the great classical 
jurists whose duty it was to determine liability for causation. Even 
Lucretius, fantastic as he was, could not have been unknown to the 
later jurists of whom he was the contemporary ; and when Lucretius 
declared in words with which Mr. Tyndall tells us there is so great a 
temptation now to close, that " Nature is seen to do all things sponta- 
neously," no doubt this opinion, if it had been thought of any weight, 
would have been noticed in those discussions in which questions of 
causation were settled. If, however, the conjectures of the material- 
istic philosophers were ever criticised by the great and grave think- 
ers whose decisions the Pandects preserve, it was probably with some 
such curt sentence as the following recorded by Cicero : " Nihil tam 
absurde dici potest quod non dicatur ab aliquo philosophorum." 4 
Philosophical discussions on such elementary questions it was not in 

1 See this in his essay defato, where noticed by Ueberweg, in his History 
he discusses the views of Democritus of Philosophy, vol. I. Am. trans, p. 
on this point. 201. He gives a list of Roman Epicu- 

2 See also in De Offic. lib. I. the fol- rean philosophers, the last of whom 
lowing : " Occasio est pars temporis, mentioned is " T. Lucretius Carus, 
habens in se aliquis idoneam faciendi (95-52 B. C.) author of the didactic 
opportunitatem." poem De Rerum Natura." " Epicu- 

8 Flavel, Discourse of the Occa- reanism," Ueberweg adds, " had very 

sions of Moral Errors, &c, cited in many adherents in the later Roman 

Fleming's Vocab. p. 361. period, but these were, for the most 

4 Cic. de Div. II. 58. The low part, men of no originality or inde- 

rank assigned to the Epicurean phi- pendence." 
losophers by their contemporaries is 

6 



CAUSATION VIEWED JURIDICALLY. 

the line of the jurists to give. Though endowed with the subtlest 
and at the same time most vigorous mental gifts ; though conversant 
as a prerequisite to their office, with the philosophy of the schools, their 
business was, not to reopen the foundations of jurisprudence, but to 
apply its principles both philosophically and exactly to the business 
questions of the day. Hence we do not find in the opinions of the jurists 
any discussion of the distinction between " conditions " and " causes," 
or any expanded vindication of the principle that nothing that is not 
a free agent can be viewed as a " cause." But while the convertibility 
of causality with free agency is not discussed, it is everywhere presup- 
posed. Hundreds of cases are given in the Digest in which the ques- 
tion is involved ; and in each case, with a dry authoritativeness which 
shows that the truth of this position is regarded as fundamental, the 
office of the jurist is to cast out of the issue all "antecedents " that are 
not free agents, and then to determine which among these free agents 
was the immediate cause. Among these cases I now select two as illus- 
trations. 

A fire is sweeping over the dry grass of a terrace which is crowned 
by a villa. 1 The villa is consumed. The fire, it appears, originated in 
a distant field, where it was started for legitimate farming purposes. 
What is the juridical cause of the burning of the villa ? In other words, 
what is the cause of the communication to this villa of the fire from the 
remote spot where it was first kindled? The jurist, in answering this 
question, betakes himself immediately to distinguishing between the 
" conditions " and the " cause " of the conflagration ; in other words, 
between such antecedents as were inevitable, and hence to be treated as 
casus, and such as could have been avoided by due care on the part of 
those watching the fire. Physical science, indeed, is invoked to aid in 
the inquiry ; but it is invoked simply as a collector of testimony whose 
weight and meaning jurisprudence is to determine. " Was the wind 
blowing at the time in such a way as to make it negligent then to start 
a fire ? " " Were the conditions of the atmosphere, on that hot autumn 
day such as to make any fire on those dry fields dangerous ? " Physical 
science is employed to search for materials, and even to suggest hypoth- 
eses, bearing on these questions ; but when it has done this its office is 
complete. It does not, even if its experts can agree upon a conclusion, 
decide. Willing or unwilling, it is required to discriminate between the 
<* antecedents " of the fire, and to give, in tones harmonious or conflict- 
ing as the case may be, its report as to which of these antecedents are 
attributable to human intervention, and which are not. Undoubtedly 
much aid can thus be received by jurisprudence. But this aid is simply 
that which an expert witness offers to a judge. Lucretius may be the 
1 See L. 30. § 3. D. de Leg. Aq. commented on supra, § 116, 865. 

7 



APPENDIX. 

witness. Lucretius may, in his testimony, say that all things are spon- 
taneous ; yet even Lucretius will be compelled to answer the question as 
to which of these antecedents were beyond, and which within, the con- 
trol of those watching the fire. And no matter what may be the opinion 
of Lucretius, the jurist decides the question upon the principle that if 
those watching the fire could have extinguished it when danger was 
probable, but omitted so to extinguish it, then they are liable for burn- 
ing the villa. 

So as to the question which comes up when a building falls in, and 
when the jurist has to decide whether the disaster is caused by negli- 
gence. This question appears frequently to have arisen, and no wonder, 
when we contrast the ponderous grandeur of Roman architecture 
with the risks of inundation at one place from lava torrents, at another 
from Apennine floods, as well as from the assiduis pluviis of which the 
jurist in the case before us, speaks. To what is the sinking of the 
walls traceable ? Specialists are to be found in this department as au- 
thoritative as any who *have ranked among the great masters of archi- 
tecture. Are they to be interrogated as to whether or no the falling of 
the wall is owing to causes that were unavoidable ? Far from this. No 
doubt architects are summoned to state whether the wall was carefully 
laid. But when the question of causation arises, then the opinion of 
these experts is not asked. For, even supposing they should agree as 
to what caused the particular result (and agreement among experts 
appears to have been as rare in Roman courts as it is in our own), 
physicists who treat all antecedents as causes, and who can only judge 
of material forces, can afford no aid to jurisprudence when it undertakes 
to distinguish those conditions which are material, and therefore merely 
consecutive, from those which are moral and causal. The physicist 
may say, "All these antecedents are causes." The jurist takes up each 
antecedent in turn, and casting out of account all antecedents which 
are not the result of the immediate action of a free agent, says that the 
latter alone constitute a cause, and the latter alone can be held liable 
as such. If the building fell by such a series of unprecedented rains 
as ordinary prudence could not have guarded against, then there is no 
cause which jurisprudence holds liable. If, however, the falling in of 
the wall was immediately occasioned by the negligent excavation of 
the builder of a neighboring house, then such builder is the juridical 
cause. 1 

In Anglo-American jurisprudence we have the same result, if not as 
advisedly, at least as summarily reached as in the Roman. Of this we 
may take as an illustration the first leading English case in which the 

1 L. 57. D. loc. 19. 2. cited supra, § 115. 



CAUSATION VIEWED JURIDICALLY, 

question of causation was distinctively discussed. 1 A., at a fair, as a 
sort of coarse joke, threw a squib into a market-house. The squib fell 
upon the table of B., who convulsively and mechanically, to prevent it 
hurting the goods on the table, tossed it off, when it fell on the table of 
C. C, in the same way, also to prevent an explosion on his table, threw 
the squib instantaneously off, when it struck D. in the face, and on the 
concussion exploded, injuring D. in the eye. What was the cause of 
D.'s hurt ? 

Now here is a question as to which physical as well as mental philoso- 
phers might well be consulted, for it involves not only the fundamental 
doctrines of causation, but the distinction, if there be such, between 
such human actions as are necessitated, and such as are free. We 
can conceive therefore, of Mill, or of Hume, or of Lucretius, being 
summoned on such a question ; and we can anticipate what would be 
their reply. " A., B., and C. were all antecedents : A., B. and C. were all 
causes. This is enough." But it is not enough. If B. and C. acted 
convulsively and mechanically in what they did, then they were not free 
agents, and therefore not causes. If A. acted negligently or mischiev- 
ously, and set in motion the agency of B. and C. who acted only mechan- 
ically, then he was the cause of the disaster. To make a " cause " it is 
essential that there should be free agency. So substantially decide the 
judges in Scott v. Shepherd ; and this decision is in full accordance 
with that of the Roman jurists. If we deny causal power to human 
beings acting mechanically, a fortiori must we deny causal power to 
matter. That such is the conclusion of Anglo-American law is sus- 
tained by a vast net-work of cases, which are presented in the pre- 
ceding pages, and which, however they may differ in detail, unite in 
assuming that only a free moral agent can be a cause. Unphilosophical 
no doubt may have been some of the judges who have thus ruled, if to 
philosophy it is essential that the primary principles of ethics and of 
jurisprudence should be reopened at every argument. Devoted most of 
these judges no doubt were to the traditions of the law. But whatever 
may have been their demerit they do not deserve the charge so often 
made against the advocate of the supremacy of moral forces over phys- 
ical, of being mere closet theorists. There is no class of men more 
observant of human nature, more considerate in the adaptation of fixed 
principles to that nature as it exists, and yet at the same time more 
conscientious both in ethical statement and logical application, than 
the judges of England and of the United States. To say that they 
are not philosophers is far less to their discredit than to the dis- 

1 Scott v. Shepherd, 1 W. Bl. 892 ; 1 Smith's Leading Cases, 549 ; 7th Am. 
ed. 755 ; supra, § 95. 

9 



APPENDIX. 

credit of the philosophy which they ignore. If the materialistic view of 
causation, even with the high indorsement it has received from Hume 
and Mill, has not, with rare exceptions, been considered, by Anglo- 
American courts, to call even for discussion, this shows that so far as 
concerns practical life, the materialistic view of causation has no ground 
on which to stand. We might, therefore, in discussing the question of 
causation, content ourselves with taking the unbroken opinion of those 
eminent expositors both of Roman and Anglo-American law who have 
made the question of responsibility for causation their especial study, 
and whom the state has from time to time charged with the duty of de- 
fining and enforcing this responsibility. Waiving for a moment, how- 
ever, this authority, I beg leave to suggest in addition the following 
reasons for rejecting the materialistic scheme of causation. 

1. If all the antecedents are the cause of any given effect, then, as 
all the antecedents existing at a particular time are the same, all the 
effects after that time must be the same. It may be replied that each 
effect has its specific conditions. But as those conditions exist (as an- 
tecedents) prior to their effects, and as on this hypothesis as well from 
the necessary interdependence of all objects in place, they form a 
united body of phenomena, then all events occurring at one time 
over all space, being the effect of the same cause, would be the same. 
If we assume that the same causes produce different effects, this at once 
destroys the assumption that the same causes necessarily produce the 
same effects. If we assume that one effect has a distinguishing ante- 
cedent which precedes no other effect under the same conditions, then 
we have an antecedent which is not an antecedent. If it be answered, 
as is sometimes the case, that each effect is qualified by an antecedent 
evoked by its own distinctive type, then we have an effect which is its 
own cause. 

2. Next may be noticed the practical communism which this theory 
of the causal character of all antecedents promotes. " Here is a cap- 
italist among these antecedents ; he shall be forced to pay." The cap- 
italist, therefore, becomes liable for all disasters of which he is in any 
sense the condition, and the fact that he thus is held liable, multi- 
plies these disasters. Men become prudent and diligent by the con- 
sciousness that they will be made to suffer if they are not prudent and 
diligent. If they know that they will not be made to suffer for their 
neglects ; if they know that though the true cause of a disaster, they will 
be passed over in order to reach the capitalist who is a remoter condi- 
tion, then they will cease to be prudent. The privileged classes of feud- 
alism were dissolute and reckless because they could not be made to 
pay for injuries they inflicted. The non-capitalists, who on this theory 

10 



CAUSATION VIEWED JURIDICALLY. 

of the causal character of all antecedents, will be the privileged classes 
of our own times, will become dissolute and reckless, because they, be- 
ing non-responsible in a pecuniary seuse, will not be called upon to pay 
for the injuries they inflict. In one sense this would cure itself, because 
the distinction between capitalist and non-capitalist would soon cease. 
If capital is not destroyed in such an encounter, it would decline to ex- 
pose itself to such risks. No engineer would peer into regions which, 
rich as they may be, are fraught with perils in proportion to their 
riches. No factory would be built, for factories, though productive of 
wealth, have in them wheels against which incautious visitors might 
run, and require the use of steam or water power which reckless tres- 
passers might abuse. Making the capitalist liable for everything, there- 
fore, would end in making the capitalist, as well as the non-capitalist, 
liable for nothing ; for there would be soon no capitalist to be found to 
be sued. 1 

3. This levelling of all antecedents to the same parity, in denying 
man's moral primacy over and responsibility for nature, destroys the true 
mission of that physical science in whose supposed interest the materi- 
alistic philosophy of causation is advanced. The mission of physical 
science is that of the exploration and direction of physical forces ; the 
mission of jurisprudence, viewing the term in its broad sense, is that 
of distinguishing between physical and moral forces, and of requiring 
that physical forces be directed in conformity with moral law. When 
physical science departs from this service, its speculations are as value- 
less as are the houses built by a child on the sand. And even when 
it undertakes the office of determining what is and what is not the re- 
sult of responsible causation, it acts in subordination to jurisprudence. 
It merely reports the facts; jurisprudence, so far as concerns the law 
of the land, not only compels it to make the report, but decides ulti- 
mately what the report means. 

It is true that there is something at the first view humiliating to 
physical science to be thus assigned to a subordinate sphere. An em- 
inent physicist, to view the question in the concrete, is placed on the 
witness stand and asked as to the cause of a particular disaster. He 
answers that the cause "is the sum of all the antecedents," or that 
"nature spontaneously acts without moral intervention." He is told, 
however, by the judge that the answer is frivolous ; and he is compelled, 
on pain of imprisonment for contempt, to repudiate his whole philoso- 
phy, and to discriminate between such antecedents as are produced by 
responsible volition, and such as are not so produced. His duty, he is 
told, is to collect facts, not to determine their moral bearings ; to make 

1 See this argued more fully, supra, § 145-9. 

11 



APPENDIX. 



discoveries, if he can, and to direct the forces he discovers, if he can, 
but to do this only in subordination to moral law. He may revolt at 
being thus treated as a mere hewer of wood and drawer of water for 
jurisprudence, and he may be tempted to exclaim, with Caliban, — 

" A plague upon the tyrant that I serve, 

I'll bear him no more sticks." 
" I say, by sorcery he got this isle, 

From me he got it." 

But the " sorcery " is simply that which moral power, as a necessity of 
their common natures, exercises over physical. This supremacy, so far 
as concerns the topic immediately before us, has not been arbitrarily 
imposed. Jurisprudence has done her best to secure the services of 
physical and psychological science in the determination of issues in 
which physical and psychological incidents are involved. Experts have 
been cordially welcomed for this purpose, and when it was found that 
in all questions involving moral considerations such experts were hope- 
lessly distracted ; when it was found that no paradox was so startling 
but that some expert advanced to sanction it by his oath ; 1 when it was 
found that even as to matters purely physical the number of experts 
testifying on the one side was usually equal to the number of experts 
testifying on the other side, 2 practical jurists endeavored to devise 



1 Thus we have cases in which 
materialistic physicians have sworn 
to the irresistibility of impulse ; and 
other cases in which, after swearing 
that certain facts showed insanity, 
witnesses have said on cross-exami- 
nation that all great crimes presuppose 
insanity, and that no suicide is sane. 
So " dipsomania " has been declared 
to be a specific form of insanity, con- 
ferring irresponsibility; and so, gen- 
erally, as to " moral insanity." See 
this fully illustrated in 1 Whart. & 
Stil. Med. Jur. § 196 et seq. 

2 In issues of insanity this equipoise 
is proverbial. There is scarcely a case 
in which insanity is set up in which 
philosophers of the materialistic school 
are not summoned to prove the non- 
responsibility of particular manias; and 
the best that the prosecution can gen- 
erally do is to give the case to the 



fused. Nor is it in insanity cases 
only that this condition exists. On 
the trial of Mrs. E. G. Wharton, 
in Maryland, in 1872, the questions 
whether poison was discovered in the 
remains of the deceased, and whether 
the deceased's symptoms were those 
of poisoning, divided the eminent ex- 
perts who were examined into two 
hostile schools. On the trial of Stokes, 
in New York, in the same year, for 
the murder of Fisk, one half of the 
surgical experts swore that the mor- 
tal wound oame from Stokes, and the 
other half swore that it came from the 
surgeons who undertook to cure Fisk. 
On the first trial of Dr. Schoeppe, 
in Pennsylvania, in the same year, for 
poisoning, the court determined to ac- 
cept the conclusions of the single ex- 
pert examined for the prosecution ; 
but after conviction it was found that 



jury with the observation that the this expert had been governed by rules 
expert testimony is hopelessly con- that one half of his profession had dis- 
12 






CAUSATION VIEWED JURIDICALLY. 



some new mode by which expert opinion could be brought out more 
satisfactorily than by examination on trial. In Germany several such 
schemes have been attempted, but without success. 1 In England and 
in the United States the ingenuity of legislators has been unavailingly 
tasked for the same purpose. No plan has as yet been suggested by 
which physical science can be enabled to pronounce moral judgments 
satisfactory even to itself; and jurisprudence has reluctantly reached 
the conclusion that physical science has and can have no capacity to 
form such judgments, and that its representatives, able, experienced, 
and honored as they are, must be confined, when examined in a court 
of justice, to a mere statement of facts, and must be forbidden, when on 
the witness stand, to express any moral or legal conclusion from such 
facts. 2 And this prohibition, let it be again noticed, is reluctantly is- 
sued. It springs from no jealousy, for nowhere are the true claims of 
physical science more honored than in courts of law. 3 But the prohi- 
bition has arisen from the failure of all efforts to make physical science 
speak coherently on any issue involving the moral relations of physical 
facts. And the reason is that to physical science the sceptre of govern- 
ment is, by the nature of things, denied. If a railroad operator, for 



carded, and a new trial had to be 
granted. As to blood stains, in no 
trial where the question comes up are 
we spared the spectacle of experts 
affirming, and then of experts denying 
the human quality of the blood. 

1 This is fully shown by Liman, in 
the 5th ed. of Casper's Gericht. Med. 

2 In England this is ruled in ?,. v. 
Richards, 1 F. & F. 87; R. v. Higgin- 
son, 1 C. & K. 129. Among the Amer- 
ican cases where the same point is 
decided may be mentioned State v. 
Klinger, 46 Mo. 224; Fairchild v. 
Bascomb, 35 Vt. 398; People v. 
McCann, 3 Parker C. R. 272; White 
v. Ballou, 8 Allen, 408 ; Luce v. Dor- 
ches. Ins. Co. 105 Mass. 299 ; Hig- 
gins y. Dewey, 107 Mass. 494 ; Cook v. 
State, 4 Zab. 843. 

8 Thus it was in no unkind feeling, 
but the necessities of his position, 
which led Chief Justice Chapman, of 
Massachusetts, in charging, in 1868, in 
a homicide case in which a peculiarly 
wild defence had been sworn to by 



experts, to say that, " I think the 
opinions of experts are not so highly 
regarded now as they were ; for, 
while they often afford a great aid in 
determining facts, it often happens 
that experts can be found to tes- 
tify to any theory, however absurd.' * 
Andrews's Trial, p. 356. Judge Davis, 
of the supreme court of Maine, in a 
similar emergency, when pressed by 
a mass of expert testimony denying 
responsibility, was forced to declare : 
"If there is any kind of testimony 
that is not only of no value, but even 
worse than that, it is, in my judgment, 
that of medical experts ; " and this 
censure is substantially indorsed by 
Judge Redfield. Neal's case, cited 1 
Redfield on Wills, ch. III. § 13. The 
proposition of the lord chancellor, 
after the extraordinary expert testi- 
mony in the Windham case, that 
experts should only be permitted to 
testify as to facts within their own 
observation, is an illustration of the 
same judicial tendency. 

13 



APPENDIX. 

instance, runs his road carelessly, and injury to others results, he may 
either be indicted for the negligence, or a suit may be instituted against 
him for damages. In the first case, the person of the " physicist " is 
seized and put in prison ; in the second, his property may be taken from 
him by the sheriff. He may say that this is simply physical force acting 
on physical force ; and that this only confirms his theory of causation, 
and of the supremacy of physical force. No doubt the sheriff acts phys- 
ically ; but what forces the sheriff to act ? Physical force, it may be 
again said ; for otherwise the sheriff would himself be sent to prison. 
But what puts this process against the sheriff in motion ? Ultimately 
we must fall back upon the conscience of the judge ; upon the moral 
sense of the community, requiring that municipal law should be obeyed; 
upon the public conviction that this obedience is required by the good 
of society and by the will of God. And to this moral force physical 
force must be subordinate, and from its incapacity of moral adjudication 
must confess its subordination. 

Yet it is to this subordination of physical to moral force that physical 
science owes its true glory. It has won no victories in any campaigns in 
which it has not thus served. As the servant of moral and juridical law 
its discoveries have been at once brilliant, beneficent, and secure. To 
the shelter of law it has owed its opportunities for studious exploration. 
To the patents granted by law it owes the enjoyment of the fruits of such 
discoveries. To the severe axiom of law, that care in the exercise of 
material forces must be in proportion to the greatness and peril of such 
forces, does it owe those qualities of delicate and subtle modification and 
compensation by which the powerful agencies discovered by the physicist 
may by the physicist be made beneficial to mankind. There have un- 
doubtedly been periods when physical science has thrown off this yoke, 
and when the physicist has appeared to the vulgar eye as a diviner ; 
but these have been the most inglorious eras of scientific history, — the 
eras when astronomy was lost in astrology, and chemistry in alchemy, 
open and responsible science in occult charlatanry. The true con- 
quests of physical science have been achieved under this very system 
of the subordination of the physical to the moral. If genius, inde- 
pendently of this system, has made great discoveries, it has only been 
through this system that these discoveries have been so moulded and 
guarded as truly to benefit and elevate mankind. Under other systems 
physical science may be sometimes worshipped with ignorant and super- 
stitious awe. It shines with its true splendor and wins its just applause 
only where moral force is supreme. 
14 



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